Date: 20091006
Docket: IMM-1313-09
Citation: 2009 FC 1006
Ottawa, Ontario, October 6,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ANIL
SHARMA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant has filed an Application for Judicial Review challenging a decision
of the Pre-Removal Risk Assessment (PRRA) Officer, dated January 30, 2009,
denying his application to be dispensed from filing an application for permanent
residence from outside Canada on humanitarian and compassionate (H&C)
grounds, pursuant to subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
II. Facts
[2]
The
Applicant, Mr. Anil Sharma, a citizen of India, has been in Canada since
September 2002. Mr. Sharma claimed refugee protection which was denied on
December 18, 2003. He filed an application for Leave against the decision of
the Immigration and Refugee Board (IRB) which was rejected by the Federal
Court, on June 11, 2004. On January 30, 2009, Mr. Sharma’s PRRA application was
denied.
[3]
Mr.
Sharma’s H&C grounds are mainly based on risk factors upon his return to India and also on his
degree of establishment in Canada:
Reasons
provided by applicant:
In his initial application, the applicant
submitted that he has his own company and submits documentation regarding his
financial and employment status. He also states that he cannot travel to any
other country to submit his application. He believes that he should be given
the privilege of applying from within Canada
based on humanitarian and compassionate grounds. The applicant also submitted
that he should not be forced to return home and submitted the immigration and
Refugee Board (IRB) decision as supporting evidence of the risks he would be
facing should he return to India.
In the September 2008 update, the
applicant reiterates the same story and allegations than the ones initially
submitted to the Tribunal of the IRB. The applicant fears persecution and
threats to his person at the hands of criminals, the Tyegi Gang and
claims that he cannot get protection because of police corruption. The
applicant also submits that he has truly established himself, pays his taxes,
has successfully integrated and adapted to Canadian society.
(Applicant’s Record, H&C Applications –
Notes to File at p. 7).
[4]
Subsequent
to Mr. Sharma’s evidence, the Officer found that Mr. Sharma did not demonstrate
sufficient H&C grounds to warrant granting an exemption. Mr. Sharma had not
demonstrated that he would suffer unusual, undeserved or disproportionate
hardship if he had to obtain a visa in the usual manner, i.e. outside Canada.
III. Analysis
[5]
The
Court is in complete agreement with the position of the Respondent.
[6]
The
IRPA requires that a foreign national who wishes to reside in Canada must apply
for and obtain a permanent resident visa before entering Canada. The IRPA
also provides for an Immigration Officer to exempt a foreign national from this
requirement if the Officer (or Minister) is of the opinion that an exemption is
justified for H&C considerations (subsection 11(1) and section 25 of the
IRPA).
[7]
As
Justice Yves de Montigny wrote in Serda v. Canada (Minister of
Citizenship and Immigration), 2006 FC 356, 146 A.C.W.S. (3d) 1057:
[20] One of the cornerstones of
the Immigration and Refugee Protection Act is the requirement that
persons who wish to live permanently in Canada must, prior to their
arrival in Canada, submit their application outside Canada and qualify for, and
obtain, a permanent resident visa. Section 25 of the Act gives to the Minister
the flexibility to approve deserving cases for processing within Canada. This is clearly meant
to be an exceptional remedy, as is made clear by the wording of that provision
… (Emphasis added).
[8]
“The H & C decision-making process is a highly discretionary one
that considers whether a special grant of an exemption is warranted” (Kawtharani
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 162, 146 A.C.W.S. (3d) 338 at
para. 15).
[9]
The
onus is on Mr. Sharma to demonstrate that the hardship he would suffer, if
required to apply for permanent residence in the usual manner, would constitute
unusual, undeserved or disproportionate hardship, which is the criteria adopted
in the following decisions, inter alia: Owusu v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 94, 228 F.T.R. 19 (F.C.A.); Monteiro
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1322, 166
A.C.W.S. (3d) 556 at para. 20; Samsonov v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1158, 157 A.C.W.S. (3d) 822; Hamzai
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1108, 152 A.C.W.S. (3d) 137 at
para. 21; Liniewska v. Canada (Minister of
Citizenship and Immigration), 2006 FC 591, 152 A.C.W.S. (3d) 500 at
para. 9; Ruiz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 465, 147 A.C.W.S. (3d) 1050 at
para. 35 and Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 (C.A.) at
paras. 23, 28).
[10]
In
Serda, above, Justice de Montigny wrote the following:
[21] It would obviously defeat
the purpose of the Act if the longer an applicant was to live illegally in
Canada, the better his or her chances were to be allowed to stay permanently,
even though he or she would not otherwise qualify as a refugee or permanent
resident. This circular argument was indeed considered by the H & C
officer, but not accepted; it doesn't strike me as being an unreasonable
conclusion.
[11]
“This Court has repeatedly held that
the hardship suffered by the applicant must be more than mere inconvenience or
the predictable costs associated with leaving Canada, such as selling a house
or a car, leaving a job or family or friends” (Hamzai, above;
reference is also made to Monteiro, above at para. 20 and Liniewska,
above at para. 9).
[12]
This
Court should not interfere with an Officer’s decision unless the decision is
unreasonable, bearing no inherently logical analysis in the Officer’s reasons
from the evidence before him that could lead the Officer to his conclusion (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
174 D.L.R. (4th) 193 (S.C.C.); Law Society of New Brunswick v.
Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247).
[13]
It
is not the role of this Court to re-examine the weight given by an Officer to
the various factors considered by the Officer when deciding whether or not to
grant an H&C exemption to a foreign national (Legault, above).
Standard of
Review
[14]
Since
the recent Supreme Court decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the applicable standard of review is
reasonableness:
[51] Having dealt with the nature of the standards of review, we now
turn our attention to the method for selecting the appropriate standard in individual
cases. As we will now demonstrate, questions of fact, discretion and policy
as well as questions where the legal issues cannot be easily separated from the
factual issues generally attract a standard of reasonableness while many
legal issues attract a standard of correctness. Some legal issues, however,
attract the more deferential standard of reasonableness.
…
[53] Where the question is one of fact, discretion or policy,
deference will usually apply automatically (Mossop, at pp. 599-600; Dr.
Q, at para. 29; Suresh, at paras. 29-30). We believe that the
same standard must apply to the review of questions where the legal and factual
issues are intertwined with and cannot be readily separated. (Emphasis added).
[15]
The
Officer noted that Mr. Sharma brought forward the same allegations of risk that
he presented before the IRB; however, the IRB rejected his request for
protection as state protection is in place for him in India. On June 11,
2004, the Federal Court dismissed Mr. Sharma’s Application for Leave and for
Judicial Review against that decision. The Officer further noted that in an
H&C application, risk is more broadly assessed in the context of an
applicant’s degree of hardship.
[16]
The
Officer concluded his analysis in the following manner:
After analysis of the evidence provided
by the applicant to support his allegations I conclude that the applicant has
not demonstrated that he would be personally at risk should he return to India. The applicants did not submit
sufficient evidence to demonstrate that he would be a person of interest or a
target for a criminal gang namely the Tyagi gang. The applicants did not submit
sufficient evidence to corroborate facts and events related to his personal
situation as alleged.
Even if the risk study in a request for a
visa exemption has a broader scope than a risk analysis done for a claim for
protection at the RPD or in a PRRA application, after a careful review of all
the evidences submitted by the applicant, I am not satisfied that the applicant
is at risk if he returns to India and that his personal circumstances warrant
exemption from the permanent resident visa requirement. The applicant did not
discharge himself of the onus to establish a risk of return in his country that
would amount to an unusual and undeserved or disproportionate hardship.
(Applicant’s Record, H&C Applications –
Notes to file at p. 8).
[17]
In
the recent case of Jakhu v. Canada (Minister of
Citizenship and Immigration), 2009 FC 159, [2009] F.C.J. No. 203 (QL), wherein
a negative H&C was challenged, this Court stated the following with respect
to an applicant’s reliance on the general documentary evidence:
[27] In
any event, it is insufficient for the applicant to base himself on the
objective documentary evidence regarding the situation in a country in general
in attempting to establish a risk for himself: see, for example, Nazaire
v. Canada (Minister of Citizenship and Immigration), 2006 FC 416; Hussain
v. Canada (Minister of Citizenship and Immigration), 2006 FC 719. The
applicant bore the onus of establishing a correlation between the particular
facts of his case and the objective documentary evidence, which he has failed
to do. (Emphasis added).
[18]
The
criteria used in the analysis of Mr. Sharma’s H&C application was to
determine if an application for permanent residence outside of Canada, would
not cause him unusual, undeserved, or disproportionate hardship. Clearly, the
Officer neither ignored the evidence before him nor misunderstood the issue he had
to decide (de Guevara v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1115, 141 A.C.W.S. (3d) 807 at
par. 12).
[19]
The
Officer assessed the risk factors alleged by Mr. Sharma and considered the
relevant documentary evidence. The Officer’s decision and reasons reflect a
detailed analysis of Mr. Sharma’s submissions and his findings are
supported by the evidence.
[20]
The
Officer did demonstrate that he considered risk factors in regard to unusual,
undeserved or disproportionate hardship. His conclusion was negative.
[21]
The
Officer applied the correct test in assessing Mr. Sharma’s H&C application.
[22]
In
his memorandum, Mr. Sharma claims that the Officer erred in assessing the
length of time spent in Canada as well as his degree of establishment in Canada.
[23]
In
the case of Lee v. Canada (Minister of Citizenship and Immigration),
2005 FC 413, 138 A.C.W.S. (3d) 350, Justice Pierre Blais stated that, while the
time spent in Canada and the establishment in the community are important
factors, they are not determinative of the application for permanent residence
on H&C grounds:
[9] In my view, the officer did not err in
determining that the time spent in Canada and the establishment in the community
of the applicants were important factors, but not determinative ones. If
the length of stay in Canada was to become the main criterion in evaluating a
claim based on H & C grounds, it would encourage gambling on refugee claims
in the belief that if someone can stay in Canada long enough to demonstrate
that they are the kind of persons Canada wants, they will be allowed to stay…
(Emphasis added).
[24]
In
a similar case, Justice Edmond Blanchard explained that H&C applications
have little to do with whether the applicants become role models in the
Canadian society. Rather, the standard to be met is whether applying for
permanent residence from abroad would cause unusual excessive or undue
hardship:
[21] The
applicant further contends that the officer did not examine the totality of the
evidence regarding establishment. The applicant argues that the officer had
sufficient evidence before her to conclude that the applicant was established
in Canada. In this regard, the officer determined
that the applicant had some level of establishment but she was not satisfied
that this level of establishment outweighed other factors respecting hardship.
[22] The
applicant has the onus of proving that the requirement to apply for a visa from
outside of Canada would amount to unusual, undue or
disproportionate hardship. The applicant assumed the risk of establishing
himself in Canada while his immigration status was
uncertain and knowing that he could be required to leave. Now that he may be
required to leave and apply for landing from outside of Canada, given that he did assume this risk, the
applicant cannot now contend, on the facts of this case, that the hardship is
unusual, undeserved or disproportionate. The words of Mr. Justice Pelletier in Irmie v. M.C.I.
(2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.), are applicable to this case:
I
return to my observation that the evidence suggests that the applicants would
be a welcome addition to the Canadian community. Unfortunately, that is not the
test. To make it the test is to make the H & C process an ex post facto
screening device which supplants the screening process contained in the Immigration
Act and Regulations.
This would encourage gambling on refugee claims in the belief that if someone
can stay in Canada long enough to demonstrate that they are the kind of persons
Canada wants, they will be allowed to stay. The H & C process is not designed
to eliminate hardship; it is designed to provide relief from unusual,
undeserved or disproportionate hardship. There is no doubt that the refusal of
the applicants' H & C application will cause hardship but, given the
circumstances of the applicants' presence in Canada and the state of the
record, it is not unusual, undeserved or disproportionate hardship....
(Emphasis added).
(Uddin v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 937, 116 A.C.W.S. (3d) 930).
[25]
In
the same vein, reference is also made to Mann v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 567, 114 A.C.W.S. (3d) 508:
[11] I wish to note the able submissions of
counsel for the applicant and the sympathy that, in my view, the applicant's
case attracts. The sympathy evoked flows particularly from the length of time
that the applicant has been in Canada, the difficulties that he has encountered
and, it would appear, overcome while in Canada, his new relationship in Canada
and the Canadian born child of that relationship, and, what I conclude must be
an obvious reality, that the applicant is now closer to his relatives and
friends in Canada than he is likely to be to his family members in India,
particularly having regard to the length of time he has been absent from India
and the divorce proceedings that he has instituted in India. That being said, I
cannot conclude that the Immigration Officer ignored or misinterpreted evidence
before her, took into account irrelevant matters or failed to consider the best
interests of the applicant's Canadian born child. I am satisfied that the
Immigration Officer's notes, quoted earlier in these reasons, reflect
consideration of all of the factors placed before her by the applicant and that
she was bound to consider. That I might have weighed those factors differently
is not a basis on which I might grant this application for judicial review.
(Emphasis added).
(Also, Serda, above).
[26]
Moreover,
the establishment in Canada is but one factor among others that the
H&C Officer must weigh in coming to a decision. It is not a deciding factor
in and of itself (Samsonov, above at para. 18).
[27]
An
applicant has a high threshold to meet when requesting an exemption from the
application of subsection 11(1) of the IRPA. The H&C process is designed
not to eliminate the hardship inherent in being asked to leave after one has
been in place for a period of time, but to provide relief from “unusual,
undeserved and disproportionate hardship” caused by an applicant is required to
leave Canada and apply
from abroad in the normal fashion. That Mr. Sharma must leave a job or family
is not necessarily undue or disproportionate hardship; rather it is a
consequence of the risk Mr. Sharma took by staying in Canada without landing (Monteiro,
above; Williams v. Canada (Minister of Citizenship and Immigration),
2006 FC 1474, 154 A.C.W.S. (3d) 689 at para. 9).
[28]
The
Officer’s reasons meet the test for adequacy as they inform Mr. Sharma of the
reasons for which his application was denied and they do not prejudice his
ability to seek judicial review.
[29]
It
is well established that reasons serve two main purposes: to ensure the parties
know that the issues have been considered and to allow the parties to file an
appeal or an application for judicial review (Via Raid Canada Inc. v.
National Transportation Agency, [2001] 2 F.C. 25, 100 A.C.W.S. (3d) 705
(C.A.); Townsend v. Canada (Minister of Citizenship and Immigration),
2003 FCT 371, 231 F.T.R. 116; Fabian v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1527, 244 F.T.R. 223).
[30]
In
R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, the Supreme Court of Canada held that
the inadequacy of reasons is not a free-standing right of appeal, in that, it
does not automatically constitute a reviewable error. A party seeking to
overturn a decision on the basis of the inadequacy of reasons must show that
the deficiency in reasons has occasioned prejudice to the exercise of a legal
right to appeal (reference is also made to R. v. Kendall (2005), 75 O.R.
(3d) 565, 66 W.C.B. (2d) 633 at para. 44 (Ont.C.A.)).
[31]
In
Siman v. Canada (Minister of Citizenship and Immigration), 2008 FC
1283, [2008] F.C.J. No. 1624 (QL), this Court rejected the applicant’s
argument that the reasons of the H&C Officer were insufficient:
[45] According
to the Respondent, the officer clearly stated that the Applicant’s degree of
establishment in Canada was not beyond the norm of what would reasonably be
anticipated of an individual living in Canada for less than four years and the
normal hardship of having to sever community and employment ties to apply in
the manner contemplated by the legislation does not amount to unusual and
undeserved or disproportionate hardship. The officer also noted that the
alleged economic difficulties of having to apply for a permanent resident visa
from the Philippines do not extend beyond the usual hardship anticipated by the
legislation. The officer’s reasons are therefore sufficient to address the
Applicant’s alleged grounds of unusual and undeserved or disproportionate
hardship and to allow her to exercise her right to file an application for
leave and for judicial review.
[46] The
Court finds that the officer has provided cogent and sufficient reasons to
justify his refusal to grant an H&C to the Applicant. She has not demonstrated
that the officer erred. (Emphasis added).
IV. Conclusion
[32]
For
all of the above reasons, the Officer has properly considered Mr. Sharma’s
situation; and Mr. Sharma’s attempt to ask the Court to re-weigh the evidence is
not warranted.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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